Have you been convicted of a criminal or related offence in Canada or another country? Depending on the type of conviction, the seriousness, and if it is a crime in Canada, your application could be refused.
It is important to learn if you are criminally inadmissible. If convicted in Canada, not all convictions will make you criminally inadmissible, and if convicted overseas, some offences that are not as serious in another country may be treated more seriously in Canada. At Bellissimo Immigration Law Group PC, we can help!
When is someone criminally inadmissible to Canada?
The Immigration and Refugee Protection Act (IRPA) is the law that considers criminal inadmissibility for foreign nationals and permanent residents. A foreign national is someone who is not a citizen or permanent resident of Canada.
Criminal inadmissibility can be found at section 36 of the IRPA.
Under subsection 36(1), both foreign nationals and permanent residents can be found to be inadmissible for serious criminality in the following circumstances:
- Being convicted in Canada of an offence under an Act of Parliament that carries a possible maximum term of imprisonment of at least 10 years, or for being sentenced to a term of imprisonment of more than 6 months;
- Being convicted outside of Canada of an offence that, if committed in Canada, would equate to an offence under an Act of Parliament in Canada, and that carries a punishment where the sentence could include a maximum term of imprisonment of at least 10 years; and
- For committing an act outside of Canada that is both an offence in the place where the act was committed and in Canada that would equate to an offence under an Act of Parliament in Canada, and that carries a punishment where the sentence could include a maximum term of imprisonment of at least 10 years.
Further, foreign nationals can also be found to be inadmissible for criminality under the following circumstances:
- Being convicted in Canada of one offence under an Act of Parliament that is punishable by way of indictment or for being convicted of two offences under any Act of Parliament that have not arisen from a single occurrence;
- Being convicted outside of Canada of an offence that if committed in Canada would constitute an offence under an Act of Parliament that is punishable by way of indictment or for being convicted of two offences on separate occasions outside of Canada that if committed in Canada would constitute an offence under any Act of Parliament;
- For committing an offence outside of Canada that is both an offence in the place where it was committed and would constitute an indictable offence under an Act of Parliament if it had been committed in Canada; and/or
- Committing an offence under an Act of Parliament prescribed when entering Canada.
An “Act of Parliament” refers to laws passed by the federal government, and includes a number of Canadian laws like the Criminal Code, Controlled Drugs and Substances Act, Customs Act, etc.
There are some important considerations for individuals who are or might be inadmissible. These are listed at subsection 36(3) of the IRPA:
- Hybrid offences are offences that can be prosecuted either by summary/ misdemeanour or indictment/felony, but for immigration considerations, all Hybrid offences are viewed as indictable/felony offences for the purposes of determining inadmissibility;
- Inadmissibility cannot be based on a conviction when a Record Suspension or Pardon has been granted. This exception only automatically applies if:
- the Record Suspension or Pardon has not been revoked, and
- the Record Suspension or Pardon was granted in Canada – against a Canadian conviction.
- Inadmissibility cannot be based on a conviction if a certificate of rehabilitation has been granted by the Minister of Immigration, Refugees and Citizenship Canada; and
- Inadmissibility cannot be based on an offence under the Contraventions Act, or for a finding of guilt under the Young Offenders Act or the current Youth Criminal Justice Act.
Can I overcome criminal inadmissibility?
There are a variety of ways that individuals who are criminally inadmissible to Canada may still seek to enter or remain in Canada and overcome their inadmissibility on a temporary or permanent basis. The available remedies are:
- A Temporary Resident Permit if less than 5 years has passed since the completion of your sentence, and if your need to enter Canada is compelling, usually for business purposes or family emergencies. If granted, this temporarily overcomes criminal inadmissibility for a period provided by Canada Immigration.
- Deemed Rehabilitation or Individual Rehabilitation is available for convictions overseas only, and if either 5 or 10 years has passed since your sentence was completed in full. A Deemed rehabilitation application is more straightforward, although is only available if inadmissible for criminality, not serious criminality. Individual rehabilitation is available for those who are inadmissible for both criminality and serious criminality. This application is more comprehensive, examining reform and if an individual will re-offend. If granted, this overcomes your criminal inadmissibility permanently.
- A Record Suspension or Pardon – for convictions within Canada only. Depending on when the offence took place (date), eligibility is either 3, 5 or 10 years after your sentence was completed in full. If granted, this overcomes your criminal inadmissibility permanently.
Important: A Sentence can include a number of considerations: fines, surcharges, costs, restitution, and compensation orders, any period of imprisonment or conditional sentences, parole and release, and a probation period.
- On appeal to the Immigration Appeal Division of the Immigration and Refugee Board which involves a full hearing before a Tribunal, includes evidence collection and examination, witness testimony, and legal submission. The Tribunal examines the seriousness of the offence or offences, rehabilitation, length of time and establishment in Canada, family in Canada and their support, their community in Canada and degree of hardship that would be caused to the appellant by a return to the country of nationality. If the appeal is allowed, this could overcome your criminal inadmissibility.
How can Bellissimo Immigration Law Group PC help?
Bellissimo Immigration Law Group PC has extensive experience with criminal immigration cases, and we can assist in determining admissibility by calculating eligibility periods, assessing whether there is an equivalent Canadian Federal law, examining court findings that may determine non-convictions, assessing expungements and pardons, and more.
These matters can be extremely complex, require careful consideration and knowledge of Canadian laws, and can most often be decided on paper, so the application must be comprehensive, concise, and compelling.
For full information on any of the above applications or appeal, please contact Bellissimo Immigration Law Group PC to find out and discuss your options!
Mario D. Bellissimo is the Co-Author of a publication which provides a comprehensive analysis of the legislative framework and the jurisprudence in the areas of immigration and criminal law, and their intersection.
Important Immigration Court Decisions on Criminal Cases
- JEYALOLIPAVAN V. CANADA (2013 FC 199)
KEY PARAGRAPHS: 28, 29, 30, 31
- CARAAN V. CANADA (2013 FC 360)
KEY PARAGRAPHS: 42, 43, 51, 55
- PADILLA V. CANADA (2013 FC 247)
KEY PARAGRAPHS: 56, 60, 86, 87, 88
- AZADI V. CANADA (2012 FC 1163)
KEY PARAGRAPHS: 38, 39, 40, 41
- FINTA V. CANADA (PUBLIC SAFETY AND EMERGENCY PREPAREDNESS) (2012 FC 1127)
KEY PARAGRAPHS: 44, 45
- CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION) V. HARKAT (2014 SCC 37)
KEY PARAGRAPHS: 60, 73, 76, 90, 93, 99, 110, 111, 112
- OKOMANIUK V. CANADA (2013 FC 473)
KEY PARAGRAPHS: 27, 78, 34, 35
- GHAFFARI V. CANADA (2013 FC 674)
KEY PARAGRAPHS: 22, 23
- K. (T.) V. CANADA (2013 FC 327)
KEY PARAGRAPHS: 111, 117
- HABTEAB KFLESUS V. CANADA (2011 FC 1214)
KEY PARAGRAPHS: 95, 96, 97
- KHALIL V. CANADA (2011 FC 1332)
KEY PARAGRAPH: 58
- PEREZ VILLEGAS V. CANADA (2011 FC 105)
KEY PARAGRAPHS: 42, 48, 49, 51, 57, 58
- SHANMUGASUNDARAM V. CANADA (2010 FCA 900)
KEY PARAGRAPHS: 30, 31, 40
- GEBREAB V. CANADA (2010 FCA 274)
KEY PARAGRAPHS: 30, 32
- TORONTO COALITION TO STOP THE WAR V. CANADA (PUBLIC SAFETY AND EMERGENCY PREPAREDNESS) (2010 FC 957)
KEY PARAGRAPHS: 145, 148, 157
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